When an employee is terminated from a job, there can be many legal issues. We have prepared common questions and answers which may apply generally to employees that have wrongful termination claims. However, each employment termination situation is unique. If the employee is a member of a union, many of these responses may not apply. Union employees should consult with an attorney or their union representative. If you have questions regarding employment termination, you should contact us for a free consultation.
Is it wrong for me to be fired for being late to work?
California Law provides that employment is presumed to be “at-will,” unless the employment has a specified term greater than one month. Because of “at-will” employment, employers are generally free to terminate employees for any lawful reason whatsoever, or for no reason at all. An important exception to this rule, is that the employer cannot violate a statute, fundamental public policy or a contract, by terminating an employee. The most common statutes protecting employees from termination, are those which prohibit discrimination based upon certain characteristics, such as race, age, sex, religion, pregnancy, disability, marital status or sexual orientation. Thus, if the employer’s true reason for terminating an employee was solely because the employee was late, and for no other reason, the termination would generally be allowed. If the employee is a member of a labor union, they may have other rights under their union agreement.
If I am in a union, can I still sue for wrongful termination?
Union employees work for their employer under a union agreement known as a Collective Bargaining Agreement (CBA) or Memorandum Of Understanding (MOU). The employee’s rights are set forth in the union agreement, Generally, the employees must exhaust whatever procedure are set forth in their union agreement before taking any court action. If the employee is in a union, they should carefully review their union agreement and discuss the matter with their union representatives or an attorney. Even if they are in a union, certain termination actions may still be filed in court, such as suits alleging discrimination, retaliation, and for reporting violations of the law by the employer. Numerous other rules also apply.
My boss hired their friend to replace me. Is it wrong?
This is commonly referred to as nepotism. There is generally nothing illegal about nepotism. Because employees are presumed by law to be at-will, employers are usually free to choose their employees as they wish. However, certain exceptions may apply, such as if the true reason for the replacement of the employee was based upon discrimination or retaliation, or if the termination breached a contract of employment.
Is it wrongful to be fired after ten years of employment?
Sometimes. Long-term employment may create an “implied” contract of employment. However, because employees in California are presumed to be at-will, it is often difficult to prove the existence of an implied contract of employment. Sometimes, such an implied contract may be created by representations of the employer of continued employment, by making statements that the employee can only be fired for good cause, or that the employee will stay with the company until they retire, etc. Additionally, terminations of employees of forty (40) years of age, and after long-term employment, suggest a possible age-based motive for the termination.
I am the oldest employee and I was fired. Is it wrong?
Not necessarily. If an employee is over 40 years old and is terminated, the employee may have protection under the laws prohibiting age discrimination. The determining factor is the motivation of the employer. Just because an employee is the oldest and was fired, does not automatically mean that the employer terminated the employee because of their age. However, if the termination was motivated because the employee was over 40, then termination would generally be illegal.
Is it wrong for my boss to harass me because they don’t like me?
Harassment is not necessarily illegal, unless it is based upon certain protected characteristics, such as the employee’s race, sex, age, religion, medical condition, pregnancy, disability, marital status or sexual orientation. Unless the conduct is based upon these characteristics, the conduct may be illegal usually not illegal. In fact, some courts have even held that some degree of “harassment” is an ordinary part of most jobs. Further, if an employee suffers stress or emotional injury as a result of on-the-job harassment which is not based upon the protected characteristics stated above, then the courts frequently hold that the employee’s exclusive remedy is to file a worker’s compensation claim.
Does my employer need to give me the reason why I was fired?
Generally, No. There is no general requirement for the employer to provide any explanation as to the reason for an employee’s termination. Many employers no longer provide an explanation for the employee’s termination, in fear that the explanation may not be entirely accurate. If, for example, an employee over forty (40) years old is terminated, and the employer gives a reason such as poor work performance, and later it is determined that the employee actually had good work performance, the employee my argue that the false reason given by the employer for the termination, was actually a “pretext” for age discrimination.
Is it wrong for me to be fired because I was sick from work?
Employees who are terminated because they have lost time from work due to illness or injury, may have rights under the federal ADA or the California Fair Employment and Housing Act. Generally, an employer may not discriminate against an employee because of certain medical conditions or disabilities. Several exceptions apply, including, for example, whether the employer had a legitimate business reason for the termination, or whether there were any statutory requirements that the employer hold the position for the sick employee.
Does my employer have to hold my job for me, if I am on leave?
Generally, yes. If an employee is out on leave, they are usually out on leave pursuant to an agreement with the employer, or under a statute, such as the Family Medical Leave Act. There are numerous exceptions to this requirement and detailed procedures. You should contact an attorney for advice.
I wouldn’t date my boss and was fired. Is it wrong?
Generally, yes. If an employer terminates an employee because they refused to have a relationship, and impliedly a sexual relationship, it may be a form of gender discrimination. These types of situations frequently include sexual harassment, including overt conduct of a sexually derogatory manner and sexual propositions.
Is it wrong to be fired for complaining against sexual harassment?
Yes. Both state and federal laws protect employees who complain about sexual harassment and violations of the discrimination statutes. An employer may not retaliate against an employee solely for making such a complaint. However, some employers find a way to retaliate without being obvious.
Is it wrong to be fired because I complained about safety?
Employees are usually protected against retaliation for complaining about violations of law, including those based upon safety. There are also numerous “public policy” rights to complain about an employer’s violation of laws or regulations, including, for example, the non-payment of wages or being required to work under unlawful conditions. There is generally no requirement that the complaint be made to a government agency, and a complaint to the employer followed by retaliation, may be unlawful.
If I have a contract with my employer, may I be terminated?
Generally, the terms and conditions of your employment are stated in the employment contract, which may provide for specific grounds for termination. Even with a contract, employment may sometimes be terminated if the employee breaches the contract. However, most employment “contracts” are not complete contracts, but instead only provide the details of the agreement regarding compensation. An employee with an employment contract should consult with an attorney regarding their rights.
What can I do if I was terminated in violation of the employee handbook?
Generally, employers are free to change their employment policies and handbooks, or in some cases, disregard them. This is due to the “at-will” nature of employment in California. However, under in some cases, an implied contract to terminate an employee only for good cause, can sometimes be created from an employee’s reliance on the employer’s personnel policies. If, for example, an employer has an established policy that employees are permanent after completing a probationary period, the employees can only be terminated for certain rule violations, and that the employee is entitled to “progressive discipline,” then the employee handbook may create an implied contract to terminate only for good cause. However, the rules in such cases are complex and an attorney should be consulted.